3 S.W. 478
JONES 
v. 
STATE.1
Court of Appeals of Texas.
January 22, 1887.
        Appeal from county court, Freestone county.
        This conviction was for false packing by putting sand in a bale of cotton with intent to defraud the 
purchaser. The penalty assessed was a fine of $15.
        The evidence disclosed conclusively that when he deposited the cotton at the gin to have it ginned 
and baled, the defendant deliberately threw a quantity of sand in it. The ginner testified that, while the 
process of ginning would remove much of the sand, a large percentage of it would remain in the bale, and 
to that extent increase its weight. It was further shown that defendant afterwards admitted that he put 
the sand in the cotton, remarking that as P., the man to whom it was to be sold, charged him three prices 
for goods, he thought it right to "get even with him." It was proved for the defense that, in purchasing 
cotton, P. would pay no more for clean than for dirty cotton.
        No appearance for appellant. Asst. Atty. Gen. Burts, for the State.
Page 479
        WILLSON, J.
        This conviction is under article 470 of the Penal Code. It is charged in the indictment that the 
defendant, with intent to defraud, put into a bale containing cotton, a commodity usually sold by weight, 
sand and dirt, mixed with the said cotton, the same being an article of less value than the said cotton, 
with which the said bale was apparently packed. It is shown very conclusively by the evidence that 
defendant did put sand into said cotton, but he did so while the cotton was in the seed, before it had been 
ginned; and it is also sufficiently shown by the evidence that in doing the act his intention was to increase 
the weight of the cotton, and thereby defraud the purchaser of said cotton.
        In his charge to the jury the trial judge, among other instructions, gave the following: "It matters 
not at what time the sand or dirt was put into the cotton, provided it was done by the defendant, and so 
done for the purpose and with the intent to defraud, and in a manner calculated to accomplish such 
purpose at the time." We believe this to be a correct statement of the law. It is not necessary, to 
constitute the offense, that the defendant should have been present at the time of packing and baling the 
cotton, and at that very time should have put the sand into the bale. The sand was mingled with the 
cotton by him, and went into the bale by his act as effectually as if he had put it into the bale when the 
cotton was packed. By putting the sand into the seed cotton, he put it into the bale of cotton. Such we 
hold to be the meaning of the law. But we are of opinion that this paragraph of the charge is upon the 
weight of evidence. It assumes as a fact that the sand or dirt was put into the cotton. This was a primary 
and most material fact to be proved by the state. It was a fact to be found by the jury, and not to be 
assumed by the court. "The charge must not comment upon the weight of evidence, or assume facts 
which it is the province of the jury to find, or lead the jury to infer what is the opinion of the judge on the 
facts." Lester v. State, 2 Tex. App. 440; Stephenson v. State, 4 Tex. App. 591; Webb v. State, 8 Tex. 
App. 115. This instruction was promptly and specifically excepted to, and the error is presented to us by 
bill of exception. We must hold, therefore, that this error, whether in judgment material or immaterial, 
must have the effect to set aside the conviction. Code Crim. Proc. art. 685; 21 Tex. App. 436.
        There is still another error in the charge which is also presented by proper bill of exception. The 
charge copies the whole of article 470 of the Penal Code, which article defines two separate and distinct 
offenses, ( 18 Tex. App. 91'>Holden's Case, 18 Tex. App. 91,) with but one of which offenses the 
defendant was charged. The charge of the court should have been limited to the law of the case, — the 
case as made by the indictment and the evidence. Tooney v. State, 5 Tex. App. 163.
        It was not error for the court to modify the special charge requested by defendant before giving the 
same to the jury. This power is expressly conferred upon the trial judge, and in this instance was 
exercised in the manner prescribed by the statute. Code Crim. Proc. art. 679.
        Because of the errors in the charge above mentioned, the judgment is reversed, and the cause is 
remanded.
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Notes:
1. Reported by Messrs. Jackson & Jackson, official reporters of the Texas court of appeals.
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